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Office for Civil Rights — Training for Grantees

Transcript

Transcript

This training provides an overview of discrimination in federally assisted programs and the civil rights laws that the Office for Civil Rights enforces and specific, detailed information for grantees of the U.S. Department of Justice. Training is offered in six video segment, each of which includes a separate self-test.

Section 1: What is the Office for Civil Rights and What Laws Does It Enforce?

The Office for Civil Rights at the U.S. Department of Justice is responsible for ensuring that recipients of federal financial assistance from the Office of Justice Programs, the Office of Community Oriented Policing Services, and the Office on Violence Against Women comply with applicable federal civil rights laws. The Office for Civil Rights at the Office of Justice Programs is different than the Civil Rights Division at the Justice Department. Many people are not aware of this distinction and confuse the Office for Civil Rights with the Civil Rights Division. To explain the distinction between the two offices, the Office for Civil Rights is directly connected to the funding components of the Justice Department. This side of the Department of Justice consists of program offices that award federal grants or provide other forms of federal financial assistance to recipients. Another distinction is that the Office for Civil Rights enforces civil rights laws exclusively through an administrative process, whereas the Civil Rights Division often enforces laws through the court system.

This training segment provides an overview of discrimination in federally assisted programs and the civil rights laws that the Office for Civil Rights enforces.

The key idea governing the enforcement work of the Office for Civil Rights is that whenever federal funding is involved, there is always a civil rights requirement that accompanies the funding. Congress has passed a number of laws that link civil right enforcement to the receipt of federal financial assistance. When an agency applies for, and then receives federal funding, it agrees to abide by certain federal civil rights laws as a condition of receiving the grant award. The underlying principle is that that the revenue that people contribute to the federal government cannot be used in a discriminatory manner in federally assisted programs.

In discussing federal civil rights laws that apply to organizations that receive federal financial assistance, it is essential to understand two important terms. First, the term recipient means an organization or agency that receives federal financial assistance. Examples of recipients include state administering agencies, state and local courts, law enforcement agencies, departments of corrections and jails, nonprofit agencies, educational institutions, faith-based organizations, and other service providers.

Second, the term beneficiary means the person who ultimately receives the federally funded services or benefits. Beneficiaries may include participants in programs, such as young adults who attend federally funded after-school activities. Beneficiaries may also include survivors of domestic violence who seek the services of a funded shelter. One might also think of beneficiaries broadly. Beneficiaries may include all of the people in a community served by a funded law enforcement agency. All of the people in the community may receive enhanced police services as a result of Justice Department funding. Recipients may often refer to beneficiaries as their clients or customers.

Remember this distinction: a recipient is an organization that receives federal financial assistance; a beneficiary is a person who ultimately enjoys the federally funded services.

Federal financial assistance ordinarily takes the form of a federal grant, but federal financial assistance can be broader: it could include technical support, training or equipment, or facilities. For example, if a state department of corrections receives funding from the Justice Department to build a prison, as long as the state department of corrections uses the facility for the original purpose of the grant, the facility, which the Justice Department funded, is considered ongoing federal financial assistance. Why is this important? When an organization receives federal financial assistance, the Office for Civil Rights then has jurisdiction to enforce civil rights laws. In the example of the federally funded prison, even if the state department of corrections did not receive any funding from the Justice Department after the initial funding for the prison, the Office for Civil Rights still maintains the authority to enforce civil rights laws in connection with the state department of corrections for as long as the prison served as a prison — in this example, the time frame could be as much as fifty years or more. Throughout this presentation, we often refer to federal funding, but it is important to remember that federal financial assistance includes more than a grant award.

To understand how civil rights laws work, it is important to understand the idea of a protected class. A protected class is a group of people who benefit from protection by law. A person does not bring a discrimination claim under federal law based on how he or she has been treated as an individual; rather, the claim relates to how the individual has been denied certain rights based on being a member of a group. At this time, the protected classes in the civil rights laws that the Office for Civil Rights enforces are race, color, national origin, sex, religion, disability, and age.

It is important to pause and think about what some of these protected classes mean. Color, for example, is not the same as race. A person who is a dark-skinned African American may have a claim against an employer who hires only light-skinned African Americans; the claim would be based not on race but color. National origin may include discrimination based on language ability. To comply with the laws addressing disability discrimination, a funded organization may need to modify a program to make it available to a person with a disability.

As courts have interpreted the equal protection clause of the Fourteenth Amendment, they have categorized protected classes by three standards: strict scrutiny, intermediate scrutiny, and rational basis.

It is important to understand that all of the protected classes are not treated the same way under the law.

Race, color, and national origin are at the highest level — often mentioned in legal discussions as requiring strict scrutiny. What this means is that a recipient cannot take race, color, or national origin into account in providing services in a funded program unless there is a compelling governmental interest. Moreover, even if a recipient can show a compelling governmental interest to take race, color, or national origin into account, it would also have to show that the program or policy involved was narrowly tailored and used the least restrictive means.

For example, a federally funded cadet program that a police department developed exclusively for African American youths would run afoul of the law if it limited participation in the program based on race — it might be appropriate for the police department to target a particular underserved population for recruitment in the program, but it would be unlawful for the police department to turn away potential participants in the program based on race.

Sex is the next highest category, often referred in legal terms as intermediate scrutiny. Intermediate scrutiny means that sex can be taken into account when doing so advances an important government interest in a way substantially related to that interest. There are times when it is permissible for recipients to take sex into account in providing services. For example, it is not a violation of federal civil rights laws for a state department of corrections to operate separate male and female prisons.

The protected class of religion is not just limited to the membership a person might have in a particular religious group, such as Catholics, Baptists, Jews, Muslims, or Sikhs. The definition of religion extends to any sincerely held moral or ethical belief. For example, if a funded faith-based organization refused to provide services to a person because that person did not share the faith-based organization's views on the death penalty, the person denied services may have a religious discrimination claim, if the denial of services was based on the person's sincerely held moral or ethical belief. Federally funded programs have an obligation to accommodate a person's religious practices or beliefs as long as the accommodation does not impose an undue burden on the federally funded program.

Recipients of federal funding must modify their programs to make them accessible to people with disabilities. The federally funded programs would need to make the changes unless making the change would impose an undue burden or would fundamentally alter the nature of the program. For example, an after-school program funded by the Justice Department might have to provide interpretation services to a beneficiary who is deaf.

When referring to age as a protected class in the context of the laws that the Office for Civil Rights enforces, it is important to understand that the protection only applies to the delivery of benefits or services and not to employment. There is a separate federal law that protects people aged forty or older from employment discrimination based on age, the Age Discrimination in Employment Act. The Office for Civil Rights, however, does not enforce this law. Instead, the law that the Office for Civil Rights enforces is the Age Discrimination Act, which applies only to beneficiaries of federally funded services. The Age Discrimination Act states that a federally funded organization cannot discriminate in the delivery of services, regardless of age — and that can mean any age, whether the beneficiary is eight or eighty.

But it is important to know that when it comes to age, the standard that courts use for assessing whether discrimination occurred is a rational basis standard. As long as a federally assisted program can provide a rationale for distinguishing the delivery of services based on age, the federally assisted program is in compliance with federal law. For example, programs funded by the Justice Department that focus on the needs of juveniles are not discriminatory based on age if the programs can provide a reason for limiting services to a particular age group — reasons might include that state laws take age into account in criminal sentencing or that a program is geared to young people at a particular stage of educational or psychological development. Unlike the category of race, where a federally funded program must show a compelling governmental interest for taking race into account in the design of a program, federally assisted programs need only provide a rational basis for designing a program that serves a particular age group. Age requires satisfying only the lowest standard, a rational basis, whereas race requires the highest standard, strict scrutiny.

The federal laws that the Office for Civil Rights enforces also bar retaliation against an individual for bringing a discrimination claim, participating in the investigation of a discrimination claim, or opposing discriminatory practices. It is important to understand that a retaliation claim may stand on its own, regardless of the merits of the underlying discrimination claim. For example, an individual may never be able to prove an underlying employment discrimination claim, but he may be able to show that he filed a discrimination claim on February first; on February fifteenth, his supervisors moved his office to the basement, on March first, he received his first poor performance evaluation after receiving only stellar reviews over the last ten years; on March seventh, he was removed from all of the most desirable assignments; on March thirteenth, he received a warning regarding his poor performance, and on April first, he was terminated. In this example, the negative employment actions, which follow in close proximity to the filing of a discrimination claim, may be enough to demonstrate that the employer retaliated against the employee for filing the claim. The retaliation claim stands on its own, even if the underlying discrimination claim fails.

In general, there are two ways to prove discrimination under federal law: disparate treatment and disparate impact. To prove discrimination under a disparate treatment theory, the evidence has to show that an individual was a member of a protected class, the individual applied for a job or applied to participate in a program for which he or she qualified, and then the employer either hired a person outside the applicant's protected class or the service provider denied services to members of the applicant's protected class. Once the claimant can show these elements, the employer or service provider has the opportunity to provide evidence showing that its decisions were based on legitimate, non-discriminatory grounds. Finally, there is the opportunity to challenge the employer's or service provider's explanation by showing that the rationale provided was a pretext for discrimination.

To prove discrimination under a disparate impact theory, the evidence would have to show that a neutral law or procedure has the effect of discriminating against individuals of a protected class. A disparate impact claim might involve the use of a test for screening job applicants. If an employer uses a test that excludes a significant proportion of women, for example, in comparison to men, an unsuccessful female applicant may claim discrimination based on sex and challenge the validity of the test. The employer might still be able to rely on the test, but it would have to show that the test was job related and consistent with business necessity. Even if the employer can satisfy these requirements, the female applicant may still be able to prove discrimination by showing that the employer declined to adopt an alternative employment practice that would have a less adverse impact on women. Disparate impact cases rely on gathering the appropriate statistical data. The Office for Civil Rights enforces both cross-cutting federal civil rights laws as well as the nondiscrimination provisions in Justice Department program statutes. Cross-cutting statutes apply to funding that comes from all federal agencies. The program statutes are unique to the Department of Justice.

The Office for Civil Rights enforces the following federal cross-cutting civil rights statutes. These laws apply not only to recipients of Justice Department funding but also to recipients of all federal financial assistance, regardless of the federal agency that is the source of funding:

Title VI of the Civil Rights Act of 1964

Section 504 of the Rehabilitation Act of 1973

Title II of the Americans with Disabilities Act of 1990

Age Discrimination Act of 1975

Title IX of the Education Amendments of 1972

Each of these statutes provides different civil rights protections. Title VI prohibits discrimination based on race, color, or national origin in the delivery of services or benefits.

Section 504 prohibits discrimination on the basis of disability in federally assisted programs both in the delivery of services or benefits as well as in employment.

Title II of the Americans with Disabilities Act prohibits discrimination on the basis of disability in governmental agencies, and it applies to both services and employment.

The Age Discrimination Act of 1975, as we have already discussed, prohibits discrimination in federally assisted programs in the delivery of services or benefits. Remember that this statute does not apply to age discrimination in employment.

Title IX prohibits discrimination based on sex in educational programs. Many people are aware of Title IX through the enhancement of opportunities in women's sports. To understand the civil rights laws that the Office for Civil Rights enforces, it may be useful to look more carefully at the language of Title VI. The nondiscrimination language in Title VI is as follows:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Title VI, as noted previously, prohibits recipients of federally funded programs from discriminating on the basis of race, color, and national origin in the delivery of services or benefits.

A key phrase in Title VI is the term "program or activity." There was a long legal battle over what this term means. Because civil rights obligations attach to the receipt of federal funding, it is important for a recipient agency to know how far this obligation extends. Does it cover only the project being funded or does it cover the entire organization? Congress has made clear that "program or activity" in Title VI means all of the operations of a funded organization.

For example, if a Department of Corrections receives federal funding to operate a rehabilitation program in only one of its many prisons, does the Department's acceptance of the federal money oblige it not to discriminate only in the funded program or the entire Department of Corrections, including prisons that do not benefit from the funded program? The answer is the entire Department of Corrections. When an organization receives federal funding for a single project, all of the operations of the funded organization must abide by Title VI's prohibition against discrimination based on race, color, and national origin. The regulations implementing Title VI state that Title VI prohibits the following:

Providing different services to individuals based on race, color, or national origin;

Denying the opportunity, based on race, color, or nation origin, to participate as a member of a planning or advisory body which then provides services for federally funded programs; and

Selecting the location of a facility with the purpose or effect of excluding individuals based on race, color, or national origin.

Section 504 of the Rehabilitation Act of 1973 also applies to all recipients of Justice Department funding. The statute defines a person with a disability (or handicap in the language of the statute) as a person who has a physical or mental impairment which substantially limits one or more major life activities, or a person who has a record of such an impairment, or a person who is regarded as having such an impairment. Recipients of Justice Department funding should know that the implementing regulation for Section 504 states that a recipient having fifty or more employees and receiving federal financial assistance from the Justice Department of $25,000 or more must do three things:

First, designate a Section 504 compliance coordinator;

Second, adopt grievance procedures; and

Third, notify program participants, beneficiaries, applicants, employees, trade unions, and organizations with collective bargaining agreements that the recipient does not discriminate on the basis of disability.

The civil rights protections of Title II of the Americans with Disabilities Act of 1990 apply to public entities, regardless of whether they received federal financial assistance. Public entities that do receive financial assistance from the Justice Department are, therefore, subject not only to Section 504 of the Rehabilitation Act but also to Title II of the ADA. The Office for Civil Rights has authority to enforce both statutes in dealing with funded public entities.

The implementing regulation for Title II of the ADA states that public entities with fifty or more employees must designate a disability coordinator and adopt grievance procedures.

Under Title IX of the Education Amendments of 1972, recipients of federal financial assistance from the Justice Department cannot discriminate on the basis of sex in educational programs. The implementing regulations of Title IX , like the implementing regulations for Section 504, also require recipients to take the following steps:

Appoint a Title IX coordinator.

Implement grievance procedures for filing Title IX complaints.

Notify interested parties that the recipient agency does not discriminate on the basis of sex.

We have just summarized the cross-cutting statutes that apply to recipients of federal financial assistance from the Office of Justice Programs, the Office on Violence Against Women, and the COPS Office. Again, these cross-cutting statutes are Title VI, Section 504, Title II of the ADA, the Age Act, and Title IX.

We will now look at the program statutes that are unique to the Justice Department.

The program statutes contain nondiscrimination provisions that apply only to recipients of funding from the Justice Department. These provisions prohibit discrimination on the basis of race, color, national origin, sex, and religion in federally assisted programs not only in the delivery of services but also in employment.

The program statutes are the Omnibus Crime Control and Safe Streets Act of 1968, as amended (or Safe Streets Act), the Juvenile Justice and Delinquency Prevention Act of 1974, as amended (or the JJDPA), and the Victims of Crime Act of 1984, as amended (or VOCA).

The Safe Streets Act and the JJDPA have special requirements for recipients that we will discuss in a moment.

The principal program statute that the Office for Civil Rights enforces is the Omnibus Crime Control and Safe Streets Act of 1968, which is known as the Safe Streets Act. The nondiscrimination provision in the statute is as follows:

No person in any state shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any programs or activity funded in whole or in part with funds made available under this chapter.

There are certain aspects of this law that require a close reading. First, notice that the protected classes in the Safe Streets Act are broader than those covered in Title VI. Title VI prohibits discrimination based on race, color, and national origin. The Safe Streets Act does the same, but adds two additional protected classes: sex and religion.

Second, notice that the Safe Streets Act not only prohibits funded agencies from discriminating in the delivery of services or benefits, but it also prohibits discrimination in employment.

Third, just as with Title VI, the Safe Streets Act uses the language of "program or activity" to indicate that all of the operations of a funded organization must abide by the prohibitions against discrimination.

Finally, as the statute states, it does not matter how much federal funding an organization receives — as long as an organization receives any federal financial assistance, it must comply with the nondiscrimination provisions in the law.

The federal implementing regulations for the Safe Streets Act include a requirement that some recipients produce an Equal Employment Opportunity Plan or EEOP. An EEOP is a report detailing a recipient's workforce, cross-classified by race, sex, and national origin in eight major job categories. The report compares the demographics of the recipient's workforce in each of the major job categories to the demographics of qualified employees in the relevant labor market, and then the report identifies any underutilization.

Whether a funded agency has to produce and submit an EEOP to the Office for Civil Rights for review depends on a number of factors, including the type of organization the recipient is, the number of employees the recipient has, and the amount of the award the recipient receives. For more information on whether your agency has to produce an EEOP, go to the Office for Civil Rights website. Follow the links for EEOP. An online wizard will help you understand your agency's EEOP obligations.

The Juvenile Justice and Delinquency Prevention Act adopts by reference the civil rights obligations of the Safe Streets Act. This means that recipients of funding under this statute also must not discriminate in the delivery of services or in employment based on race, color, national origin, sex, and religion. It also means that recipients of funding under the JJDPA must also comply with the EEOP requirements of the Safe Streets Act.

Federal regulations implementing the Juvenile Justice and Delinquency Prevention Act require state administering agencies that receive funding under this statute to do the following:

Appoint a civil rights coordinator.

Establish grievance procedures

Ensure the compliance of subrecipients with the EEOP requirements.

Cooperate with all civil rights investigations of the Office for Civil Rights.

Another program statute that the Office for Civil Rights enforces is the Victims of Crime Act, which is commonly known as VOCA. The nondiscrimination provision in VOCA is as follows:

No person shall on the ground of race, color, religion, national origin, handicap or sex be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in connection with, any undertaking funded in whole or in part with sums made available under this chapter.

Notice that VOCA's nondiscrimination provision is similar to Title VI and the Safe Streets Act, with two differences.

First, it expands the protected classes, so that the statute not only prohibits discrimination based on race, color, national origin, sex, and religion, but it also includes the additional protected class of handicap, which subsequent statutes prefer to refer to as disability.

Second, VOCA uses the unusual word, "undertaking. " At the time of the passage of VOCA, the Supreme Court limited the meaning of the words "program or activity," in Title VI, which Congress later amended to restore the original, broader meaning. So, in drafting VOCA, Congress had to use alternative language. In the end, the term "undertaking" means the same as our current understanding of "program or activity."" That is, the nondiscrimination provision of VOCA applies to all of the operations of an organization receiving federal financial assistance.

The Office for Civil Rights has prepared additional training segments, available online, on the following topics:

What are the Standard Assurances and How Does the Office for Civil Rights Enforce Civil Rights Laws?

What are the Civil Rights Obligations of State Administering Agencies?

What Obligations Do Recipients of Justice Department Funding Have to Provide Services to Limited English Proficient (LEP) Persons?

What Laws Affect Funded Faith-Based Organizations?

What Civil Rights Protections Do American Indians Have in Programs Funded by the Justice Department? What are the Obligations of Funded Indian Tribes?

For more information on the Office for Civil Rights, you may write to us at the Office for Civil Rights; Office of Justice Programs; U.S. Department of Justice; 810 7th Street, NW; Washington, DC 20531. You may telephone us at (202)307-0690 or contact us by TTY at (202) 307-2027. You may submit a question to the Office for Civil Rights by email at [email protected] You may also visit the Office for Civil Rights' website.

This training segment provides self-test scenarios to see how well you understand the role of the Office for Civil Rights and the laws it enforces. In analyzing civil rights claims under the civil rights laws that the Office for Civil Rights enforces, it is often useful to begin by asking three threshold questions:

First, Is the agency receiving federal financial assistance? Only when an organization receives federal funding from components of the Justice Department, does the Office for Civil Rights have the authority to enforce the law. The Office for Civil Rights only has the authority to enforce civil rights laws in agencies that receive funding from the Office of Justice Programs, the Office on Violence Against Women, and the Office of Community Oriented Policing Services.

Second, does the claim involve a federally protected class? If so, can you identify the federally protected class?

Third, what federal law governs the situation? What right, if any, may a claimant assert against the recipient agency? Did the agency discriminate in employment or in the delivery of services or benefits?

To see how one begins the process of analyzing the applicability of federal civil rights laws to a funded organization, let us consider the first scenario, Beta House.

Beta House is a domestic violence shelter and it receives funding from the Office on Violence Against Women. It has a policy of not accepting any clients who have mental disabilities. How would you analyze this situation from the perspective of whether it contains a civil rights claim?

First, is the agency receiving federal financial assistance? Yes, it is. It is receiving funding from the Office on Violence Against Women, a component of the Department of Justice. Second, does this situation involve a protected class? Yes. In this case, the matter involves potential clients with disabilities. Finally, what federal law governs this situation? The applicable federal law is Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination in federally assisted programs based on disability, including mental disability. A funded program cannot have a blanket policy that bars services to people with mental disabilities.

Let us now look at a second scenario: Gamma Sheriff's Department. The Gamma Sheriff's Department receives funding from the COPS Office and it patrols county Highway One. The Department's practice is to stop all Hispanic drivers on the highway to search for drugs. How would you analyze this situation from the perspective of civil rights laws that apply to federally assisted programs?

Let us walk through the analysis of this situation. First, is the agency receiving federal financial assistance? Take a moment to answer this question for yourself. Yes, it is receiving federal financial assistance from the COPS Office, a component of the Department of Justice. Second, what is the federally protected class? Can you name it? In this case, the federally protected class is national origin. Hispanic or Latino drivers are being treated differently than other drivers who drive on Highway One based on their national origin. What federal law governs this situation? Take a moment to see if you can recall the applicable federal statute. In this case the applicable laws are Title VI of the Civil Rights Act of 1964 and the Safe Streets Act. Both laws prohibit funded organizations from discriminating on the basis of national origin in the delivery of services. Enforcing traffic laws is a public safety service; the problem in this scenario is that the Sheriff's Department's enforcement of the traffic laws targets drivers based on national origin.

Next, let's examine a third scenario: the Alpha Police Department. The Department is hiring entry-level police officers. To be hired, the Department requires all candidates to scale a six-foot wall. The percentage of women who fail this test is significantly greater than the percentage of men who fail the test. How would you begin to analyze this situation from the perspective of applicable civil rights laws that apply to federally assisted programs?

Unlike the other scenarios we have discussed, the Alpha Police Department presents an employment issue. First, is the Department receiving federal financial assistance? Take a moment to think if there is any information on funding? In this case, we have no information about funding. It is important to remember that the Office for Civil Rights only has jurisdiction to enforce laws tied to federal financial assistance from Justice Department components — from the Office of Justice Programs, the COPS Office, and the Office on Violence Against Women. If there is funding, then the Office for Civil Rights can enforce the applicable civil rights laws; if there is no funding, the Office for Civil Rights does not have jurisdiction. Second, What is the federally protected class? Can you identify the protected class that would be the basis for a potential civil rights claim? The protected class is sex. Women are failing the entrance test, scaling the six-foot wall, at a significantly higher rate than men. Finally, what federal law governs this situation? If the Alpha Police Department receives funding from the Justice Department, then a number of civil rights protections may come into play. If scaling the wall is part of a training program at the police academy, Title IX, which prohibits discrimination based on sex in educational programs, might apply. If the police department is receiving funding under a Justice Department program statute, such as the Safe Streets Act, the Juvenile Justice and Delinquency Prevention Act, or the Victims of Crime Act, then the nondiscrimination provisions in these statutes might apply. They all prohibit discrimination in employment based on sex.

Using the same scenario involving the Alpha Police Department and its testing procedures that eliminate a higher percentage of female candidates than male candidates — and assuming the police department does receive federal funding — under what theory might a female recruit be able to make a discrimination claim against the Alpha Police Department?

She may be able to bring a claim under a disparate impact theory of discrimination. If the test, in this case, scaling a six-feet wall, is neutral on its face and has the effect of eliminating a significantly higher percentage of women than men from entry-level positions, then the test may have a disproportionate discriminatory impact on women. The police department may be able to refute the discrimination claim by showing there is no disparate impact based on sex or by proving that the test is job related and consistent with business necessity. A female recruit may still prevail by demonstrating that the police department declined to adopt an alternative employment practice with a less adverse impact.

Let us look at the scenario presented by Omega House. Omega House is a nonprofit organization that has designed, in cooperation with a local public high school, an after-school program for at-risk youth. The leadership of Omega House is particularly interested in keeping young men from Southeast Asian countries off the street. Omega House is currently receiving funding from the Office on Juvenile Justice and Delinquency Prevention under the Juvenile Justice and Delinquency Prevention Act to design culturally specific programming for high-school-aged boys. As part of the application process to participate in the after-school program, applicants must be able to show they are of Southeast Asian heritage.

How would you analyze this situation from the perspective of the applicable federal civil rights laws?

First, Is there federal funding? Yes, Omega House receives federal financial assistance under the Juvenile Justice and Delinquency Prevention Act. The Juvenile Justice and Delinquency Prevention Act prohibits discrimination in employment and in the delivery of services or benefits based on race, color, national origin, sex, or religion.

Second, What are the federally protected classes? In this case they are national origin, sex, and age.

Third, what federal laws govern this situation? Title VI; the DOJ program statute, the Juvenile Justice and Delinquency Prevention Act; possibly Title IX, if the program could be construed as an educational program; and the Age Act.

Let us look at the laws and how they apply to each of the federally protected classes we identified.

When federally funded organizations, design programs, they cannot take race, color, or national origin into account unless there is a compelling governmental interest in doing so. In this case, in the absence of an expressed compelling governmental interest, Omega House cannot, under Title VI and the Juvenile Justice and Delinquency Prevention Act, limit after-school program services based on national origin. Omega House cannot limit participation in its program to Southeast Asian boys.

A federally funded organization also cannot limit participation in a program based on sex unless there is an important governmental interest. In this case, under the Juvenile Justice and Delinquency Prevention Act — and possibly Title IX, in the absence of an expressed important governmental interest, Omega House cannot limit the after-school program to boys.

Finally, under the Age Act, unless there is a rational basis for doing so, Omega House cannot limit its program based on age. It is conceivable that Omega House could provide a rationale for limiting its services to high-school aged young adults. The reasons might include that program materials are age appropriate or they address young adults at a particular stage of educational or psychological development.

This concludes the Self-Test on the training segment, What is the Office for Civil Rights and What Laws Does It Enforce?

Section 2: What Obligations Do Recipients of Justice Department Funding Have to Provide Services to Limited English Proficient (LEP) Persons?

This training segment provides an overview of the obligation that recipients of Justice Department funding have under Title VI of the Civil Rights Act of 1964 (or Title VI), as well as under Justice Department program statutes, not to discriminate on the basis of national origin as it relates to providing services or benefits to individuals who are limited English proficient (or LEP).

Title VI applies to all recipients of financial assistance from the Justice Department, whereas each program statute applies only to recipients of financial assistance under that statute. In addition to other civil rights protections, Title VI and the Department of Justice program statutes prohibit recipients of federal financial assistance from the Justice Department from discriminating on the basis of national origin in the delivery of services or benefits. One form of national origin discrimination can be discrimination against an individual based on the individual's limited English proficiency (or LEP).

A limited English proficient (or LEP) person is a person who has a first language other than English and has a limited ability to read, write, speak, or understand English. This definition has evolved over time, beginning with a 1974 Supreme Court decision, Lau v. Nichols, where the Supreme Court indicated that failure to provide adequate language assistance in public schools constituted national origin discrimination in violation of Title VI.

In 2002, the U.S. Department of Justice issued guidance to recipients of federal financial assistance on Title VI's prohibition against national origin discrimination affecting LEP persons. In that guidance, the Department of Justice provided examples to federally funded organizations about how they can structure their programs to ensure that they are providing meaningful access to LEP persons to the program's services and benefits in a nondiscriminatory manner.

According to the Justice Department's guidance, a federally funded organization must (1) take reasonable steps to ensure meaningful access to the programs, services, and information it provides free of charge, and (2) establish and implement policies and procedures for language assistance services that provide LEP persons with meaningful access.

In a moment we will consider what reasonable steps a recipient must take to make its services accessible to LEP individuals.

In determining whether a recipient of federal financial assistance is providing meaningful access to its programs for LEP persons, it might consider whether the LEP person is able to understand the services and benefits that are available, whether the LEP person is able to communicate effectively the relevant circumstances of his or her situation, and whether the recipient organization is able to communicate effectively with the LEP person.

A recipient should not charge an LEP person for the language services it provides. An LEP person should not have to pay an interpreter or translator to access the recipient's services. The Justice Department guidance offers a four-factor analysis to help recipients assess what reasonable steps they should take in providing LEP persons with meaningful access to programs, services, and information. The four factors are as follows:

First, a federally funded organization should determine the number or proportion of LEP persons served or encountered in the appropriate eligible service population. The greater the number or proportion of LEP persons served or encountered in the appropriate service population, the greater is the need for language services.

Typically, the appropriate service population is persons who are served or encountered in the geographic area that has been approved by a federal grant agency as the recipient's service area. This is not, however, always the case. For example, the appropriate eligible service population for a large metropolitan police department that serves many different LEP communities may be each precinct, whereas the appropriate eligible service population for a rural sheriff's department may be the entire county.

Second, a federally funded organization should determine the frequency with which LEP individuals come in contact with the program. The greater the frequency of contact, the greater the need for language services. For example, it would be reasonable for a funded domestic violence shelter that has frequent contacts with Spanish-speaking LEP individuals to have ready access to Spanish-speaking interpreters to help with the intake process.

Third, a federally funded organization should determine the nature and importance of the service or benefit provided. The more important it is, or the greater possible consequences to LEP individuals if they do not have access to the program, the more likely language services are needed.

For example, the obligation to communicate rights to a person who is arrested or to provide medical services to an ill or injured inmate differs significantly from the obligation to provide language services for a bicycle-safety course or recreational programming.

There may be times when the importance of the service being provided trumps all other considerations. For example, regardless of the language demographics of the eligible service area or the frequency of contacts with a particular language group or the costs involved in obtaining competent language access services, providing an interpreter to an LEP person who is being prosecuted for a capital crime would undoubtedly outweigh other considerations.

Fourth, a federally funded organization may take into account the resources it has available and the costs it will incur in providing language access services.

There is no one way to provide meaningful access to federally funded programs and activities for LEP individuals. What constitutes "reasonable steps" for large federally funded organizations may not be reasonable where small federally funded organizations are concerned.

The Office for Civil Rights is aware that for many recipients, resources for providing language access services may be limited.

The cost of securing language services is, however, only one of the four factors used in analyzing the reasonableness in making services accessible to LEP individuals.

Resources alone are also not the determining factor.

In assessing the resources a recipient has to provide language access services, it is especially important for recipients not to think of resources only in terms of dollars.

There are many cost-effective ways for recipients to provide LEP persons with meaningful access to programs, services, and information. Some examples include sharing language assistance materials and services with other service providers, training bilingual staff to serve as interpreters and translators, sharing information with industry groups and associations, using telephonic and video conferencing with access to interpreters, standardizing documents to reduce translation needs, or using qualified community volunteers.

Once a recipient has analyzed the four factors described above, the recipient needs to decide what language services it will provide. There are two primary types of language services: oral language services or interpretation, and written language services or translation. Interpretation is the act of listening to something in one language and orally rendering it into another language

Translation is the replacement of a written text from one language into an equivalent written text of another language

When a federally funded organization provides oral language services, it should consider the following issues and options:

The recipients must have some method for determining that the interpreter is competent. Competency requires more that self-identification as bilingual, although it does not necessarily mean formal certification as an interpreter. Additionally, some recipients, such as courts, may have additional requirements for interpreters.

When recipients often encounter certain languages, hiring bilingual staff — especially in public contact positions — may be a good and economical option for providing interpretation. It is important to remember, however, that being bilingual does not mean that a person is competent to interpret; the recipient must still have a method for testing the competency of its bilingual employees.

Telephonic interpreter service lines allow recipients to access quickly interpreters for many different languages.

Using community volunteers may be an economical way to provide language services; however, as with other interpreters, the recipient must have some method for ensuring their competency.

The Justice Department strongly discourages the use of family members, friends, or others (such as inmates or bystanders) as interpreters. Nonetheless, an LEP person should be permitted to use a family member to interpret if he or she wishes. The recipient should carefully consider issues of confidentiality, privacy, conflict of interest, and reliability before using such informal interpreters. Even if an LEP person insists on using an interpreter whom the LEP person provides, the recipient should still determine independently whether the circumstances warrant the recipient's relying on its own qualified interpreter. Recipients should exercise extra caution when a minor is being put in the position to serve as an interpreter, regardless of whether this is the LEP person's choice. As a matter of policy, recipients should avoid using minors as interpreters. The recipient should always inform the LEP person that it can provide a competent interpreter at no cost.

When translating written documents, there are two questions a recipient should consider: first, "What documents should be translated?" and second, "Into what languages should documents be translated?"

The Justice Department guidance suggests that recipients translate vital written documents into the language of each frequently encountered LEP group eligible to be served or likely to be encountered.

Whether or not a document (or the information it solicits) is vital generally depends upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. Examples of "vital documents" include consent forms, written notices of rights, prison handbooks, applications to participate in a recipient's programs, and notices of disciplinary action.

The languages spoken by the LEP individuals with whom the recipient has contact should determine the languages into which it translates vital documents.

Many organizations would like to ensure with greater certainty that they are complying with their obligation to provide written translations in languages other than English. The Justice Department guidance has a Safe Harbor Provision. Although complying with the Safe Harbor Provision is not a requirement, doing so constitutes strong evidence that a recipient has met its obligation under Title VI, and other federal laws, in providing written translations for its LEP service population.

Under the Justice Department guidance's Safe Harbor provision, the following actions are strong evidence of compliance:

The recipient provides written translations of vital documents for each eligible LEP language group that constitutes five percent or 1000, whichever is less, of the population of persons eligible to be served or likely to be encountered.

If there are fewer than fifty persons in a language group that meets the five-percent threshold, the recipient does not need to translate vital written materials, but it does need to provide written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of those vital, written materials free of cost.

The U.S. Census Bureau has many resources available online that can assist a recipient in understanding the language demographics in its service population. The census files provide some information on the size of the resident LEP population, which may for some recipients be important information relevant to conducting the four-factor analysis or determining the languages into which it will translate documents to meet the Safe Harbor Provision in the Justice Department's guidance document. You may visit the website of the U.S. Census Bureau at www.census.gov.

After completing the four-factor analysis and deciding what language assistance services are appropriate, a recipient should develop an implementation plan to address the identified needs of the LEP populations they serve.

According to the Department of Justice's guidance, a language access plan should incorporate five elements:

A recipient may incorporate the first two factors of the four-factor analysis into its language assistance plan: gathering data on the language demographics of its service population and tabulating the frequency of contacts with LEP beneficiaries.

Second, Information about the available language assistance measures.

An effective language-access plan should include information about the ways in which a recipient will provide language assistance. For instance, federally funded organizations may include in their plans information on the types of language services provided, how its staff can access the services, how to respond to LEP callers, how to respond to written communications from LEP persons, how to respond to LEP persons who have in-person contact with staff, and how to ensure competency of interpreters and translators. Third, training for staff. All staff members should receive training on the recipient's language access plan, knowing in particular their shared responsibility under federal law to provide services to LEP individuals. Staff members in public-contact positions need to know how to interact effectively with LEP persons. They should know how to identify the primary language of an LEP person. They should be able to access quickly an interpreter, regardless of whether the interpreter is a qualified bilingual colleague, a professional interpreter, a qualified volunteer, or a telephonic interpretation service. Staff members should be familiar with the vital documents that a recipient has available in translation, and to provide these documents to LEP persons as needed. Staff members should also learn how to work with an interpreter, respecting the neutral role of the interpreter while speaking directly to the LEP person. Fourth, notice to LEP persons. It is important that federally funded organizations let LEP persons know that language services are available free of charge. This information should be provided in the languages LEP persons will understand. Examples of notifications may include posting signs in intake areas and other entry points; stating in outreach documents that language services are available; working with community-based organizations and other stakeholders to inform LEP persons that language services are available; issuing notices in local non-English newspapers, television stations, and radio stations; and distributing notices at schools and houses of worship. Fifth, monitoring and updating the LEP language access plan. It is important that organizations periodically update their language access plan because communities and language demographics are constantly changing. A plan may reflect the needs of a community's LEP population today, but the needs of the community's LEP population may be significantly different in just a few years. For additional information on a recipient's responsibility to provide services to LEP individuals or for technical assistance in developing a language access plan, you may write to the Office for Civil Rights; Office of Justice Programs; U.S. Department of Justice; 810 7th Street, NW; Washington, DC 20531. You may contact the Office for Civil Rights by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at [email protected] Additional information is also available on the website of the Office for Civil Rights at www.ojp.usdoj.gov/ocr or at www.lep.gov.

Self Test 2

This self-test provides a series of scenarios and questions that will help you understand the responsibility that a recipient of federal financial assistance has in providing services to persons with limited English proficiency. The first scenario, Sisters House. Sisters House, a nonprofit organization, receives funding from the Office on Violence Against Women, a Justice Department component, to operate a domestic-violence shelter. Ms. Turgenev, a recent Russian immigrant who knows little English, seeks the shelter's services. What should the shelter do?

Here is the answer. Under Title VI of the Civil Rights Act of 1964, the federally funded shelter has an obligation to take reasonable steps to provide Ms. Turgenev with meaningful access to the services it offers to any of its clients — whether the clients are proficient in English or not. Determining what is reasonable in this instance requires working through the four-factor analysis: whether the service population consists of a significant number of Russian-speaking LEP persons, whether the shelter has frequent contacts with Russian-speaking LEP persons seeking services, whether the particular services that Ms. Turgenev is seeking are important, and whether the shelter has resources to provide her with language access services. If Ms. Turgenev is in an emergency situation, such as fleeing an abusive domestic situation, one might characterize the services she is seeking as extremely important — a factor in the four-factor analysis that would oblige the shelter to provide language assistance services to Ms. Turgenev. Ideally, the shelter's intake coordinator, acting in accordance with the shelter's language assistance plan on which she received training, would immediately contact a qualified interpreter to explain to Ms. Turgenev the applicable laws related to domestic violence and the options she has for requesting a restraining order. The shelter may also need to provide an interpreter to allow Ms. Turgenev to participate in the shelter's programming. The second scenario, the Troy Police Department. Officer Stanley of the Troy Police Department, which receives funding from the Office of Community Oriented Policing Services (or COPS), responded to a reported robbery of a small grocery. No one was injured. The Korean proprietors were hard to understand. To help with filing his report, he asked a neighbor to interpret. Would this be all right?

Here is the answer. The Troy Police Department, as a recipient of COPS funding, should have a written language assistance plan that is consistent with the Justice Department's guidance. Under the four-factor analysis, the police department's response to a crime scene is an important public service. If Officer Stanley arrived and concluded that he was in the midst of an emergency — needing, for example, to know the medical condition of an injured person or information related to a fleeing criminal, then he could reasonably ask anyone in the area to interpret. In this instance, the robbery is over and there is no emergency. Officer Stanley should be able to access reliable interpretation services from the police department, whether the interpreter is a colleague who comes to the crime scene or a vendor that interprets over the telephone. There are good reasons for not relying on the neighbor to interpret. Even if Officer Stanley had good reason to believe that the neighbor's primary language is Korean, he has no basis for knowing whether the neighbor is a competent interpreter. The skill to speak a foreign language is a different skill than interpreting accurately. Moreover, there is a possibility that the neighbor may have a conflict of interest. The third scenario, juvenile court. Mr. and Mrs. Montez, who are Spanish-speaking LEP persons, attended the first appearance in juvenile court of their 16-yr-old son, John. English is John's primary language, and the court receives funding from the Department of Justice. Does the court have to provide an interpreter to Mr. & Mrs. Montez?

Here is the answer. Yes, as the Justice Department understands Title VI, the court does have to provide an interpreter to Mr. and Mrs. Montez so that they may follow the court proceedings. Even though John is not an LEP person, his parents are, and they have the right in these circumstances to an interpreter. Although John may be responsible for his own actions, as long as he is a minor, his parents are also responsible for him. There may be important information bearing on their son's charge that they could not communicate to the court. Without an interpreter, the court may have also missed important information related to John's case that only the parents could provide. For more information on the obligations that courts have to provide language-access services, see the August 2010 Letter of Assistant Attorney General Thomas Perez of the Civil Rights Division to state court administrators, which appears in the resources section following this presentation. This concludes the Self-Test: What Obligations Do Recipients of Justice Department Funding Have to Provide Services to LEP Persons?

Section 3: What are the Civil Rights Obligations of State Administering Agencies?

This training segment, presented by the Office for Civil Rights, Office of Justice Programs, U.S. Department of Justice, provides an overview of the obligations and responsibilities that state administering agencies have under the applicable civil rights laws.

The first part of this online training program addresses the obligations that state administering agencies have to comply with the applicable federal civil rights laws. The second part of the training program focuses on the responsibility that state administering agencies have to monitor subrecipients to ensure that they are also in compliance with the same federal civil rights laws.

A state administering agency is a component of state government that receives financial assistance from the Justice Department and then makes subawards to other state agencies, units of local government — such as county or municipal agencies or Indian tribes, or nonprofit organizations. The term subrecipient refers to the organizations that a state administering agency funds with Justice Department resources.

As we noted in the introduction, a state administering agency that receives funding from the Department of Justice must ensure not only its own compliance with applicable civil rights laws, but also the compliance of its subrecipients, vendors, and contractors.

To understand the applicable civil rights laws, you may want to view the separate, online training video that the Office for Civil Rights has prepared that provides an overview of the laws that apply to recipients of federal financial assistance from the Justice Department.

A state administering agency must ensure its own compliance with applicable civil rights laws by (1) providing notification that it does not discriminate; (2) taking reasonable steps to provide meaningful access to its services to persons with limited English proficiency (or LEP); (3) submitting to the Office for Civil Rights any findings of discrimination from a court or administrative agency issued within the past three years; (4) formulating an Equal Employment Opportunity Plan (or EEOP), if required to do so; (5) designating a coordinator to handle discrimination complaints and adopting grievance procedures, if required to do so under Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, Title IX of the Education Amendments, or the Juvenile Justice and Delinquency Prevention Act; (6) developing written grievance procedures for receiving discrimination complaints, and (7) ensuring that it does not discriminate for or against an applicant or subrecipient on the basis of religious character or affiliation.

We will discuss each of these items in more detail.

To ensure its own compliance with the applicable civil rights laws, a state administering agency should provide notification to its employees and beneficiaries, and to the employees and beneficiaries of subrecipients, that it does not discriminate on the basis of race, color, national origin, religion, sex, disability, or age; and that it does not retaliate against persons who file a discrimination complaint or lawsuit, who complain to the state administering agency or the subrecipient about discrimination; or who participate in a discrimination proceeding, such as being a witness in a complaint investigation or lawsuit.

State administering agencies should be aware that national origin discrimination includes discrimination on the basis of limited English proficiency (or LEP). An LEP person has a first language other than English and a limited ability to read, speak, write, or understand English. A state administering agency, if it is a direct service provider, must take reasonable steps to provide meaningful access to LEP persons. Meaningful access may entail providing language assistance services, including oral interpretation and written translation, where necessary. The Office for Civil Rights encourages state administering agencies to consider the need for language services for LEP persons.

The Office for Civil Rights strongly encourages federally funded state administering agencies that provide direct services to the public to develop language access plans to (1) ensure consistent application of policies and practices, so when an LEP person seeks services from the federally funded organization, everyone in the organization will know how to provide the services, and the services will be provided consistently; (2) provide training to employees on how to best serve LEP individuals; and (3) inform LEP persons about available language services.

Information on a recipient's obligation to provide language services to beneficiaries and assistance in developing a language access plan is available online at www.lep.gov.

The Office for Civil Rights has prepared a separate, online training segment for recipients and subrecipients on their obligations under applicable civil rights laws on serving LEP beneficiaries.

Under the implementing regulations for the Safe Streets Act, state administering agencies have an obligation to send to the Office for Civil Rights any adverse findings of discrimination based on race, color, national origin, sex, or religion issued within the past three years by a federal or state court or a federal or state administrative agency after a due process hearing.

State administering agencies should also be aware of their obligation to formulate an Equal Employment Opportunity Plan (EEOP) in accordance with 28 CFR pt. 42, subpt. E.

An EEOP is a comprehensive document which (1) analyzes an agency's workforce in comparison to relevant labor-market data, (2) analyzes an agency's employment practices to determine their impact on the basis of race, sex, or national origin, and (3) is a tool to identify possible problem areas where employment discrimination may be occurring.

If a state administering agency is not required to formulate an EEOP, it should submit a certification form to the Office for Civil Rights indicating that it is not required to develop an EEOP. If a state administering agency is required to develop an EEOP, but is not required to submit the EEOP to the Office for Civil Rights, the agency should submit a certification form to the Office for Civil Rights certifying that it has an EEOP on file that meets the applicable requirements.

If the state administering agency receives a single award in the amount of $500,000 or more under the Safe Streets Act, the Juvenile Justice and Delinquency Prevention Act, or the Victims of Crime Act and has fifty or more employees, it should submit a copy of the EEOP Short Form to the Office for Civil Rights. Additional information on the EEOP requirements is available at the website of the Office for Civil Rights at www.ojp.usdoj.gov/about/offices/ocr.htm

The Office for Civil Rights has prepared separate technical assistance materials that are available online to assist recipients and subrecipients comply with the EEOP requirements.

The implementing regulations for four federal laws require some recipients of Justice Department funding to designate a civil rights coordinator and adopt grievance procedures:

Section 504 of the Rehabilitation Act of 1973,

Title II of the Americans with Disabilities Act of 1990,

Title IX of the Education Amendments of 1972, and

the Juvenile Justice and Delinquency Prevention Act of 1974.

Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability The Department of Justice's implementing regulations for Section 504 requires that recipients with fifty or more employees who receive federal financial assistance from the Department of Justice of $25,000 or more:

Designate a Section 504 Coordinator who is responsible for coordinating the agency's efforts to comply with Section 504 of the Rehabilitation Act, including investigating complaints of disability discrimination.

Notify program participants, beneficiaries, applicants, employees, unions or professional organizations holding collective bargaining or professional agreements with the recipient, that the recipient does not discriminate on the basis of disability.

Recipients and subrecipients should also provide notice to interested parties on how and where to file a disability discrimination complaint.

The Department of Justice's implementing regulation for the Americans with Disabilities Act requires that public entities that employ fifty or more persons, regardless of the amount of the federal funding received, designate a responsible employee as disability coordinator and adopt grievance procedures.

Under Title IX of the Education Amendments of 1972, recipients of federal financial assistance from the Department of Justice cannot discriminate on the basis of sex in educational programs. The implementing regulations of Title IX, like the implementing regulations for Section 504, also require recipients implementing educational programs to: appoint a Title IX coordinator, implement grievance procedures for filing Title IX complaints, and notify interested parties that the recipient agency does not discriminate on the basis of sex.

The implementing regulation for the Juvenile Justice and Delinquency Prevention Act (28 C.F.R. § 31.202) requires certain state administering agencies that receive funding under the statute to designate a civil rights coordinator who is responsible for ensuring that all civil rights responsibilities are being met, which includes notifying the public and subrecipients of the right to file claims with the Office for Civil Rights and complying with the EEOP requirements.

The Office for Civil Rights recommends that state administering agencies have a civil rights coordinator in place not only for complaints alleging disability and sex discrimination but also for all other discrimination complaints related to other federally protected classes, which include race, color, national origin, religion, and age. Complaints may also allege retaliation.

A state administering agency should also have written procedures for receiving discrimination complaints not only from employees and beneficiaries of the state administering agency but also from the employees and beneficiaries of its subrecipients.

The state administering agency's written policy for addressing discrimination complaints should include, at a minimum, the following elements:

designating a coordinator who is responsible for overseeing the complaint process;

notifying the state administering agency's employees, as well as beneficiaries and subrecipients, of prohibited discrimination and its policy for handling discrimination complaints;

establishing written grievance procedures for handling discrimination complaints not only from the state administering agency's employees and beneficiaries but also from its subrecipients' employees and beneficiaries;

developing complaint procedures that have one of three options:

(a) having the state administering agency investigate the complaint itself,

(b) referring the complaint to another state or federal agency, such as a state's human rights office or the federal EEOC , or

(c) referring the complaint directly to the Office for Civil Rights;

notifying the Office for Civil Rights whenever the state administering agency investigates the complaint itself or refers the complaint to a federal or state agency; and

training staff on the responsibility to refer discrimination complaints or potential discrimination issues to the complaint coordinator as soon as the alleged discrimination comes to light.

State administering agencies should also be aware that according to the implementing regulations for both Title VI and the Safe Streets Ac, a recipient "may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination . . . . " It is the longstanding policy of the Office for Civil Rights to view recipients that lack civil rights grievance procedures as using "methods of administration" that have the effect of "substantially impairing [the] accomplishment of the objectives of [a funded] program as respects individuals of a particular race, color, national origin, sex, or religion. "

For sample complaint procedures, see the website of the Office for Civil Rights under the heading Resources, Sample Documentation.

State administering agencies must not discriminate either for or against an applicant organization or a subrecipient on the basis of religious character or affiliation. State administering agencies cannot designate a certain amount of federal funding to support faith-based organizations, nor can state administering agencies exclude otherwise-eligible faith-based organizations from applying for program funding from the Justice Department.

In addition to monitoring its own compliance with applicable civil rights laws, state administering agencies must also monitor their subrecipients, vendors, and contractors to ensure that they are in compliance with the civil rights laws.

Subrecipients have the same civil rights obligations as state administering agencies. Just as the state administrative agency has to make sure that it is itself in compliance with federal civil rights laws, the state administrative agency has an obligation to monitor its subrecipients to ensure that they are also in compliance with the same laws. The state administrative agency is responsible for monitoring its subrecipients to ensure that they:

provide notification that they do not discriminate;

take reasonable steps to provide to persons of limited English proficiency meaningful access to the subrecipient's services or benefits;

submit to the state administering agency or to the Office for Civil Rights adverse findings of discrimination from a court or administrative agency after a due-process hearing;

formulate an Equal Employment Opportunity Plan (or EEOP), if required to do so,

designate a coordinator to handle discrimination complaints and adopt grievance procedures, if required to do so under Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, or Title IX of the Education Amendments,

have written procedures in place for receiving discrimination complaints;

sign standard assurances that refer to all applicable federal civil rights laws and regulations, and

comply with the Justice Department regulations applicable to faith-based organizations.

State administering agencies should monitor each of its subrecipients to ensure that each subrecipient is providing notification to its employees and beneficiaries that the subrecipient does not discriminate on the basis of race, color, national origin, religion, sex, disability, or age; and that it does not retaliate against persons who file a discrimination complaint or lawsuit, who complain to the state administering agency or the subrecipient about discrimination; or who participate in a discrimination proceeding, such as being a witness in a complaint investigation or lawsuit.

State administering agencies should monitor each of its subrecipients to ensure that each subrecipient is taking reasonable steps to provide to persons of limited English proficiency meaningful access to services or benefits. As previously discussed, meaningful access may entail providing language assistance services, including oral interpretation and written translation, where necessary. State administering agencies should inform their subrecipients that information on LEP obligations can be found at www.lep.gov.

The Office for Civil Rights has prepared a separate training segment, available online, that provides more detailed information regarding national origin discrimination under Title VI and the Safe Streets Act as it relates to LEP persons.

State administering agencies should monitor each subrecipient that receives funding subject to the Safe Streets Act to ensure that each subrecipient submits to the Office for Civil Rights any adverse findings of discrimination issued within the past three years based on race, color, national origin, sex, or religion from a federal or state court or federal or state administrative agency after a due process hearing. To ensure that the subrecipients comply with this requirement, many state administrative agencies collect the adverse findings directly from their subrecipients and then forward the adverse findings to the Office for Civil Rights.

State administering agencies should monitor each of its subrecipients that receive federal funding subject to the administrative provisions of the Safe Streets Act to ensure that each subrecipient complies with its obligations in formulating, keeping on file, or submitting to the Office for Civil Rights an EEOP Short Form.

The state administering agency does not need to evaluate the merits a subrecipient's EEOP Short Form, if the subrecipient is required to produce one. For subrecipients that need to develop an EEOP Short Form but do not need to submit it to the Office for Civil Rights for review, the state administering agency should, however, check during a desk audit or onsite visit whether the subrecipient can show that it has one.

Compliance with the EEOP requirement may take the form of filing an exemption rather than producing and submitting an EEOP Short Form. For example, even though Indian tribes and medical and educational institutions are exempt from the EEOP requirement, they must still send a certification form to the Office for Civil Rights stating the reason for claiming the exemption.

Additional information regarding a grantee's EEOP requirements can be found at the website for the Office for Civil Rights at www.ojp.usdoj.gov/ocr

The Office for Civil Rights has prepared online technical assistance that helps subrecipients comply with the EEOP requirements.

State administering agencies should monitor each of its subrecipients to ensure that each subrecipient with fifty or more employees and receiving federal financial assistance from the Department of Justice of $25,000 or more has designated a Section 504 Coordinator. As previously discussed, this person shall be responsible for coordinating the subrecipient's efforts to comply with Section 504 of the Rehabilitation Act, including

investigating complaints of disability discrimination. The subrecipient should make available the name, office address, and telephone number of the coordinator,

adopt grievance procedures that incorporate due process standards, and that provide for the prompt and equitable resolution of complaints alleging disability discrimination, and

notify program participants, beneficiaries, applicants, employees, unions or professional organizations holding collective bargaining or professional agreements with the subrecipient, that it does not discriminate on the basis of disability.

The subrecipient should also provide notice on how and where to file a disability discrimination complaint.

Also as previously discussed, the Department of Justice's implementing regulation for Title II of the Americans with Disabilities Act also requires public entities with fifty or more employees, whether they receive federal financial assistance or not, to designate a disability coordinator and adopt grievance procedures.

State administering agencies should monitor each of its subrecipients with educational programs to ensure that they:

appoint a Title IX Coordinator,

implement grievance procedures for filing Title IX complaints, and

notify interested parties that it does not discriminate on the basis of sex.

Also, as noted previously in the discussion of the laws pertaining to state administering agencies, the Office for Civil Rights' policy is to view subrecipients that lack civil rights grievance procedures as using "methods of administration" that have the effect of discriminating against program beneficiaries based on race, color, national origin, sex, and religion.

The Office for Civil Rights recommends that state administering agencies encourage subrecipients to have a coordinator in place not only for disability and sex complaints, but also for complaints of race, color, national origin, religion, and age discrimination, as well as for retaliation complaints.

State administering agencies should inform subrecipients that any discrimination complaints from either employees or beneficiaries may be forwarded either to the state administering agency or the Office for Civil Rights. State administrative agencies do not need to require subrecipients to establish their own separate, independent grievance procedures, as long as the subrecipient has a written policy that states that it will send discrimination complaints, especially complaints from beneficiaries, to the state administering agency or the Office for Civil Rights.

Law enforcement agencies are a particular class of subrecipients that should have detailed complaint procedures that allow members of the public to file discrimination complaints against law enforcement staff.

State administering agencies should also monitor each of its subrecipients to ensure that each subrecipient signs standard assurances that include all applicable federal civil rights laws and regulations.

There is a separate online training program on the standard assurances for state administering agencies. The information would also be applicable for subrecipients.

State administering agencies should also ensure that federally funded faith-based organizations:

do not use federal resources for explicitly religious activities;

complete and submit a Certificate of Exemption, if they have hiring practices favoring coreligionists; and

have a referral procedure in place for potential beneficiaries objecting to the religious nature of the organization.

The Office for Civil Rights has prepared a separate training segment, available online, that provides detailed information on the rights and responsibilities of funded faith-based organizations.

To ensure subrecipients' compliance with their obligations under federal civil rights laws, state administering agencies have a number of available tools, which may include conducting desk audits, making periodic onsite visits, and providing training programs not only for its own staff but for the staffs of subrecipients.

For onsite visits and desk audits, the Office for Civil Rights recommends that state administering agencies use a monitoring instrument, such as a civil rights compliance checklist, to evaluate a subrecipient's compliance with the various civil rights requirements that apply to all Department of Justice funded subrecipients, as discussed in this presentation.

To assist state administering agencies, the Office for Civil Rights has prepared a sample Federal Civil Rights Compliance Checklist, which is available at the website of the Office for Civil Rights under the headings Resources, Sample Documentation. State administering agencies may use or modify this Checklist, or develop their own to monitor a subrecipient's compliance with applicable civil rights statutes and regulations.

The Office for Civil Rights recommends that a state administering agency provide periodic mandatory training to its staff to ensure that the staff is aware not only of the civil rights obligations of the state administering agency but also of the civil rights obligations of the subrecipients.

The Office for Civil Rights strongly encourages state administering agencies to provide periodic training to all subrecipients regarding their civil rights obligations and responsibilities. The training should discuss the applicable civil rights laws and regulations, and include a discussion of the subrecipient's procedures for referring discrimination complaints to the state administering agency or the Office for Civil Rights.

The Office for Civil Rights has training materials on its website, including this training segment, which is accessible to subrecipients.

Additional information about the responsibilities of state administering agencies is available at the website of the Office for Civil Rights at www.ojp.usdoj.gov/ocr.

State administering agencies can also contact the Office for Civil Rights directly in writing at

You may also reach the office by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at [email protected]

Self Test 3

This self-test provides a series of scenarios with related questions to help you see whether you understand the responsibilities that state administering agencies have in monitoring the compliance of subrecipients with federal civil rights laws.

First, let us provide some background.

With funding from the Office of Justice Programs, Central State Department of Public Safety (or DPS) made fifteen subawards to police departments in the state, including the Eagleton Police Department, which has over 500 employees and received $150,000 under the Juvenile Justice and Delinquency Prevention Act.

Here is the first scenario. Ethel Fielding filed a complaint with the Eagleton Police Department alleging that when she reported a stolen bicycle to the Eagleton Police Department, an officer refused to take the report and ridiculed her national origin and her use of a hearing aid.

What are the Department of Public Safety's responsibilities concerning this complaint?

Take time to consider how you would answer this question.

Here is the answer. The Department of Public Safety should have already monitored the Eagleton Police Department to ensure that at a minimum, the agency had a written policy for addressing discrimination complaints from beneficiaries, stating that it would refer complaints either to the state administering agency — which in this case is the Department of Public Safety — or to the Office for Civil Rights.

Law enforcement agencies are a particular class of subrecipients. Unlike other subrecipients, the Office for Civil Rights ordinarily expects law enforcement agencies to have more developed, in-house complaint procedures for dealing with discrimination complaints from members of the public. The Eagleton Police Department would have this obligation regardless of the size of its workforce or the amount of federal assistance it receives. The Department of Public Safety could either deal with the Eagleton Police Department's apparent lack of complaint procedures on its own, or it could refer the matter to the Office for Civil Rights.

In addition, in this case, one of Ms. Fielding's complaints was that she was mistreated based on her hearing disability, being ridiculed for wearing a hearing aid. One might interpret her complaint as including an allegation of disability discrimination. The Eagleton Police Department, which has more than fifty employees and which received a grant of more than $25,000 from the Justice Department, had an obligation under Section 504 of the Rehabilitation Act of 1973 to have a civil rights coordinator and a grievance process. In this instance, the police department appears to have had neither, which would indicate that it is not in compliance with federal law.

In the second scenario, Ms. Fielding initially contacted the Department of Public Safety to complain about the alleged discriminatory conduct of the Eagleton Police Department. She spoke to Mr. Summit, a Department of Public Safety program manager, who told her that the Department of Public Safety is not responsible for the conduct of the Eagleton Police Department.

Is this correct?

The answer is no. The information Mr. Summit provided to Ms. Fielding was not correct.

As the state administering agency, the Department of Public Safety has an obligation to assist Ms. Fielding with her discrimination complaint. The Department of Public Safety should have a written policy for addressing discrimination complaints that it receives not only from its own employees and beneficiaries but also from the employees and beneficiaries of subrecipients.

In this instance, Ms. Fielding, as a beneficiary of services from one of the Department of Public Safety's subrecipients, has the right to file a complaint with the Department of Public Safety.

The Department of Public Safety should have written grievance procedures that would provide for it to investigate the complaint, refer the complaint to another agency, or refer the complaint to the Office for Civil Rights. The written complaint procedures should include information about the designated complaint coordinator and the process for investigating and resolving the complaint.

Once Mr. Summit learned about Ms. Fielding's complaint, he should have accepted it and referred the matter to the Department of Public Safety's complaint coordinator.

Here is the third scenario.

Last month, the U.S. District Court issued a finding that the Eagleton Police Department discriminated on the basis of national origin by failing to promote Sgt. Aquila to the rank of Lieutenant.

What should the Department of Public Safety or the Eagleton Police Department do with this finding?

Recipients and subrecipients of federal financial assistance subject to the nondiscrimination provisions of the Safe Streets Act that receive an adverse finding of discrimination based on race, color, national origin, sex or religion from a federal or state court or from a federal or state administrative agency, which is the result of a due process hearing, have an obligation to send a copy of the adverse finding to the Office for Civil Rights.

The Eagleton Police Department is a recipient of federal financial assistance under the Juvenile Justice and Delinquency Prevention Act, which is subject to the nondiscrimination provisions of the Safe Streets Act. Because the police department received an adverse finding of discrimination from a federal court, it has an obligation to submit a copy of the finding to the Office for Civil Rights.

Although the police department has its own, independent responsibility to submit a copy of the finding to the Office for Civil Rights, the Department of Public Safety is also responsible for ensuring that the police department, as one of its subrecipients, is complying with this civil rights obligation. The Department of Public Safety should monitor its subrecipients to determine if there are any discrimination proceedings in which the subrecipients are a named party and then ensure that the subrecipients submit adverse findings to the Office for Civil Rights for review.

The Office for Civil Rights notes that it is a good practice for state administering agencies to gather adverse findings of discrimination from their subrecipients and then forward them to the Office for Civil Rights. In this way, the state administrative agency's monitoring practice not only ensures that the subrecipients are in compliance with the law but also that the state administrative agency is as well.

This concludes the Self-Test on the training segment, What are the Civil Rights Obligations of State Administering Agencies?

Section 4: What are the Civil Rights Laws that Affect Funded Faith-Based Organizations?

This training segment provides an overview of the rights faith-based organizations have to receive federal financial assistance and, once funded, their obligation not to discriminate in providing services or benefits.

In December 2002, President Bush issued Executive Order 13279, entitled Equal Protection of the Laws for Faith-Based and Community Organizations.

This Executive Order was issued to "ensure equal protection of the laws for faith-based and community organizations. " It also seeks to further the national effort to strengthen the capacity of those groups to meet social needs in America's communities.

The Executive Order requires federal funding entities to treat faith-based organizations the same as any other applicant or federally funded group, neither favoring nor discriminating against such organizations in making and administering grant awards.

Under Executive Order 13279, federal, state, and local governments, and other organizations administering federal funds, shall be guided by the following four fundamental principles. First, federal funds for social service programs should be distributed in the most effective and efficient manner possible. Second, the nation's social service capacity will benefit if all eligible groups, including faith-based organizations, can compete on an equal footing for federal funds that support social service programs. Third, no organization should be discriminated against on the basis of religion or religious belief in the distribution or administration of federal funds under social service programs. And, finally, faith-based organizations receiving federal funds may not discriminate against current or prospective beneficiaries based on religion, religious belief, a refusal to hold a religious belief, or a refusal to participate in a religious practice.

On November 17, 2010, President Obama issued Executive Order 13559, entitled Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations.

This Executive Order clarifies the partnership between the federal government and federally funded faith-based organizations that was described in Executive Order 13279.

Executive Order 13559 was issued to "promote compliance with constitutional and other applicable legal principles. " It also aims to "strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need. "

Because of these Executive Orders, government agencies must remove barriers for faith-based organizations applying for and receiving federal financial assistance, and they must not discriminate either in favor of or against such organizations.

These two requirements pertain to federal, state, and local governments, and other organizations that distribute federal funding.

In January 2004, the Department of Justice issued regulations entitled Equal Treatment for Faith-Based Organizations, located at 28 C.F.R. pt. 38. These regulations discuss what faith-based organizations can and cannot do when providing services paid for with federal funds.

First, faith-based organizations must not use federal funding to advance inherently (or explicitly) religious activities. And, second, these organizations may not discriminate against beneficiaries based on religion or religious belief.

The 2002 Executive Order and the Justice Department's 2004 regulations used the term "inherently religious. " The 2010 Executive Order uses the term "explicitly religious. " The definitions of these two terms are essentially identical. For the purposes of this presentation, we use the term "explicitly religious," which is from the 2010 Executive Order.

Faith-based organizations that receive financial assistance from the Department of Justice are prohibited from engaging in explicitly religious activities. These activities include worship, religious instruction, proselytization, or conversion efforts as part of the programs funded with federal financial assistance.

Although explicitly religious activities are prohibited in the programs or services funded with federal financial assistance, an organization can conduct these activities if it satisfies two conditions. First, the organization must offer these explicitly religious activities separately, in time or location, from the programs or activities funded with federal financial assistance. Second, participation in the programs or activities must be voluntary for beneficiaries.

A faith-based organization receiving federal funds may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs, provided that it does not use federal funding to support any explicitly religious activities.

A faith-based organization receiving federal funding may use space in its facilities without removing religious art, icons, scriptures, or other religious symbols. It may also retain religious terms in its name and include religious references in its mission statements and other governing documents.

Federal laws ensure that funded faith-based organizations cannot discriminate on the basis of religion in the delivery of services or benefits.

As a result, a faith-based organization, in providing federally funded services, cannot discriminate against current or prospective beneficiaries based on religion, religious belief, a refusal to hold a religious belief, or a refusal to participate in a religious practice. A faith-based organization should also ensure that, in all outreach activities related to its federally funded services, it does not exclusively focus on religious target populations.

One significant change under the 2010 Executive Order is that a faith-based organization must establish a referral system for current and prospective beneficiaries who object to the religious character of that organization.

For example, if a domestic violence victim seeks assistance at a church-based federally funded shelter, but objects to the church's religious icons, the church must refer the person to an alternative provider.

The referral system must ensure that referrals to an alternative provider are done within a reasonable time after the date of the objection.

Once the faith-based organization establishes a referral system, it must create policies and procedures to implement that system. However, before funded faith-based organizations implement a specific referral process, they should await further guidance from the Department of Justice.

Executive Order 13559 created an interagency working group to oversee the execution of the Executive Order. This working group aims to bring greater uniformity among agency regulations, guidance, and policies regarding faith-based organizations, while ensuring fidelity to constitutional principles.

The working group includes senior officials from various government agencies, including the Department of Justice. This designated group is expected to review and evaluate existing federal agency regulations, guidance, and policies that relate to faith-based organizations.

Within 120 days from the date of Executive Order 13559 (which was signed on November 17, 2010), the working group was to submit a report to the President. The goal of this report is to identify refinements that should be made in existing regulations, guidance, and policies to ensure consistency with the Executive Order.

The Office for Civil Rights will continue to provide information on its website about developments related to this topic.

The next topic area is the hiring practices of funded faith-based organizations.

Title VII of the Civil Rights Act of 1964 prohibits most employers from making employment decisions based on an applicant's or employee's religious beliefs or practices. At the same time, Title VII also has an exemption for religious organizations. Under this provision, Title VII will not apply to a religious corporation, association, educational institution, or society that seeks to hire persons of a particular religion to perform work connected with that entity's activities. A similar exemption exists for certain religiously affiliated schools if they are owned, supported, controlled, or managed by a particular religion or religious group, or if the curriculum is directed toward the propagation of a particular religion.

This religious organization exemption, which permits religious preference in hiring, applies only to those institutions whose "purpose and character are primarily religious. " The determination of whether a particular employer falls within this "religious" organization exception is made on a case-by-case basis.

Funded faith-based organizations do not forfeit Title VII's exemption from religious discrimination in employment. Some DOJ programs, however, contain statutory provisions that prohibit federally funded groups from discriminating in employment based on religion.

As a result, federally funded organizations should consult with the appropriate DOJ program office to determine the scope of any applicable nondiscrimination requirements.

In 1993, Congress passed the Religious Freedom Restoration Act. Generally, this Act prohibits the government from substantially burdening the exercise of religion.

On a case-by-case basis, the Religious Freedom Restoration Act may allow a federally funded faith-based organization to hire coreligionists, if the faith-based organization can demonstrate two things. First, that the program for which it seeks federal funding is an exercise of its religion. And, second, that requiring it to either forgo its religious preference in hiring or else forgo the federal funding would substantially burden the exercise of its religion. Once the FBO satisfies these requirements, it can make religious-based hiring decisions unless the funding entity shows that applying the nondiscrimination provision furthers a compelling government interest and is the least restrictive means of furthering this interest.

If, under the Religious Freedom Restoration Act, a faith-based organization makes hiring decisions based on religion, it must certify three things. One, it will offer federally funded services to all qualified beneficiaries, regardless of religion. Two, explicitly religious activities will be voluntary and kept separate in time or location from federally funded activities. And, three, it is a religious organization that sincerely believes that abandoning its religious hiring practice in order to receive federal funding would substantially burden its religious exercise.

If an organization contends that it should be able to make religious-based hiring decisions under the Religious Freedom Restoration Act, it must complete a Certificate of Exemption form. This form is available on the website of the Office for Civil Rights at ojp.gov/funding/pdfs/fbo_sample.pdf.

The faith-based organization should submit the Certificate of Exemption form to the agency that provides it with federal funding.

A question that OCR often receives is whether faith-based groups need tax-exempt status under Section 501(c)(3) of the Internal Revenue Code to receive funds from DOJ programs. The answer is no, with the exception of nonprofits funded under the Juvenile Justice and Delinquency Prevention Act.

Many grant programs, however, do require an entity to be a "nonprofit organization" in order to be eligible for funding.

An applicant faith-based organization can establish its nonprofit status in the following four ways. One, the organization has tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. Two, a statement from the state's taxing body or secretary of state certifying that the entity is a nonprofit organization operating within the state, and that its net earnings do not benefit a private shareholder or individual. Three, a certified copy of the applicant's certificate of incorporation or other, similar document that establishes the nonprofit status of the applicant. Or, finally, any of the above, if it applies to a state or national parent organization, with a statement from that organization noting that the applicant is a local nonprofit affiliate.

For more information on civil rights laws as they apply to funded faith-based organizations, you may write to the Office for Civil Rights; Office of Justice Programs; U.S. Department of Justice at the following address: 810 7th Street, NW; Washington, DC 20531. You may contact the Office for Civil Rights by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at [email protected] You may also visit the Office's website at www.ojp.usdoj.gov/ocr.

Self Test 4

In this training segment, we provide self-test scenarios to see how well you understand a faith-based organization's right to receive federal financial assistance and that organization's related obligations when providing services and benefits.

Here is background for the scenarios that follow.

People with a Mission of Princeton, a faith-based organization, provides a range of social services to young people. In fiscal year 2012, People with a Mission received funding under the Juvenile Justice and Delinquency Prevention Act and the Victims of Crime Act to operate an after-school program for teenage victims of gang violence.

The first scenario: hiring at People with a Mission.

The Reverend Johnson, pastor of Princeton Assembly, is the founder of People with a Mission. In hiring a coordinator for the after-school program, he wanted someone who shared his values. He asked Sue Williams, a student at a nearby seminary where he teaches, to apply for the job. She submitted her application and was hired.

Does her hiring pose any potential civil rights issues?

Here is the answer to the first scenario.

It might appear that the hiring decision the pastor made in looking for someone who shared his religious views might be problematic. However, DOJ's current position is that a faith-based organization can base its hiring practices on the religion or religious beliefs of an individual if it can demonstrate two things. First, the program for which it seeks or receives federal funding is an exercise of religion. Second, that requiring it to either forgo its religious preference in hiring or else forgo the federal funding would substantially burden that exercise of religion. The final point is that the Justice Department, as the funding entity, has not provided a sufficient justification to prevent the organization from making a religious-based hiring decision. Specifically, it is unable to show that applying the nondiscrimination provision in this instance furthers a compelling government interest and is the least restrictive means of furthering this interest.

This exemption is based on DOJ's interpretation of the Religious Freedom Restoration Act, which prohibits the government from unfairly burdening the practice of religion. For a faith-based organization to receive this exemption, it should file a Certificate of Exemption form with the agency that provides it with federal funding. In this case, those agencies would be the Office of Juvenile Justice and Delinquency Prevention and the Office for Victims of Crime.

It is important to remember, however, that this exemption has no impact on the faith-based organization's obligation not to discriminate against beneficiaries and potential beneficiaries based on religion or religious beliefs.

The second scenario involves an invitation to a church service.

Princeton Assembly has a long-established custom of holding a community supper every Wednesday evening, preceded by a short service in the sanctuary. According to a high-school guidance counselor, at the end of each session of the after-school program, the pastor invites the young people to stay for the devotional service and meal. She said a few would stay, but most would leave.

Are there any potential civil rights issues?

Here is the answer to the second scenario.

A possible violation might be the mixture of the community supper, the devotional service, and the after-school program. Because the events — the after-school program, the community supper, and the devotional — are separate in time, the arrangement might be acceptable. It would be important, however, to find out how "voluntary" the pastor makes the invitation. For instance, do the young people feel pressured to attend? Generally, faith-based organizations should consider the age of the children it serves because children may have a harder time saying "no" to a strong suggestion from someone in leadership. The best practice would be to ask for parental consent before allowing minors to participate in explicitly religious activities that are separate from the federally funded program.

The third scenario deals with a participant's objection to religious content.

The guidance counselor referred Bart Benet, a high-school student, to People with a Mission. After his first session of Sue Williams's after-school group, Bart reported the following to the counselor: "I just didn't feel comfortable. There were crosses everywhere. They kept talking about Jesus, saying how much faith saves you, and then I felt pressured to go to church. "

Are there any potential civil rights issues?

Here is the answer to the third scenario.

A possible problem is that Bart says he "felt pressured to go to church" and "they kept talking about Jesus. " In thinking about this issue, it would be helpful to understand who pressured him to go to church and who kept talking about Jesus. If other students in the peer group talked about their beliefs, that is not problematic because they, of course, have their own First Amendment rights. But if the group leader made those statements, that would be an explicitly religious activity (proselytization) that cannot occur at the same time and in the same location as the federally funded program. It would be helpful to know if this discussion occurred during the program and whether students were allowed to participate voluntarily. Finally, it is acceptable under the Equal Treatment Regulations for a faith-based organization to keep its religious symbols in the area where it operates the federally funded program. Religious icons or symbols, such as crosses, in and of themselves, are not problematic.

The fourth scenario involves the responsibility of a funded faith-based organization to refer a beneficiary to an alternative service provider.

Bart Benet told The Reverend Johnson that he would not attend any more after-school sessions at People with a Mission, as he was uncomfortable being in a church. The pastor told Bart to take a few days to think about it.

Did The Reverend Johnson respond appropriately to Bart?

Here is the answer to the fourth scenario. The pastor probably responded appropriately when he asked Bart to take a few days to think about staying in the program. Under Executive Order 13559, the pastor should have, however, also given Bart a referral to an alternative provider within a reasonable period of time. People with a Mission should have referral policies and procedures to ensure that beneficiaries who object to its religious character can access services from other sources.

The fifth scenario deals with the tax status of funded faith-based organizations.

People with a Mission has no form on file with the IRS recognizing its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code.

Is this a problem?

This typically is not a problem unless the program is funded under the Juvenile Justice and Delinquency Prevention Act. Here, People with a Mission is funded by a grant under that Act. As a result, it would need to have Section 501(c)(3) status with the Internal Revenue Service.

This concludes the Self-Test on the training segment, What are the Civil Rights Laws that Affect Funded Faith-Based Organizations?

Section 5: What Civil Rights Protections Do American Indians Have in Programs Funded by the Justice Department? What are the Obligations of Funded Indian Tribes?

What are the Obligations of Funded Indian Tribes?

What are the Obligations of Funded Indian Tribes? In thinking about the connection between civil rights protections and obligations that come with federal financial assistance and what they may mean for American Indians and Indian Tribes, it is important to revisit an important distinction: the difference between a recipient of financial assistance and a beneficiary of financial assistance. You may remember from another training segment prepared by the Office for Civil Rights, that a recipient is an organization that receives funding. A beneficiary is an individual who ultimately enjoys the funded services or benefits.

The distinction between a recipient and beneficiary is particularly important in thinking about American Indians and Indian Tribes. Indian Tribes may be a recipient of federal financial assistance, while an American Indian may be a beneficiary of federal financial assistance.

First, let us consider the rights of American Indians as beneficiaries.

American Indians have a unique political status that is different under the law than any other racial or ethnic group in the United States. Nonetheless, civil rights laws apply to American Indians as a protected class based on race or national origin. Courts have used both classes in recognizing the civil rights of American Indians.

The civil rights laws that protect all other racial and ethnic groups in the United States also apply to American Indians. For example, a funded sheriff's office cannot adopt a policy of stopping all American Indians driving down a particular county road near a reservation while allowing all similarly situated non-Indians to drive by without being stopped. The prohibition against law enforcement practices based on racial profiling applies to American Indians as it would to any other racial or ethnic group.

American Indians have also often relied on the protected class of religion to counter discrimination based on religious practice.

The legal definition of American Indian for civil rights protections is not the same legal definition of American Indian for some federal entitlement programs.

For example, if an American Indian brings an employment discrimination claim against a funded employer, the American Indian would not need to show a percentage of American Indian ancestry or prove bloodlines or be an enrolled member of a tribe. The American Indian complainant would be covered under federal law, as long as the employer reasonably believed that the employee was a member of a protected class based on some objective evidence, which may consist of physical appearance, language, cultural activities, or association.

Next, let us examine how federal civil rights laws may affect American Indian tribes as recipients of federal financial assistance. Tribes may be eligible for federal grants as a unit of local government. Tribally affiliated service providers may also be eligible for federal financial assistance. Tribes, like all other recipients of federal financial assistance, incur certain civil rights obligations as a condition of accepting federal aid.

But there are clear distinctions between the civil rights obligations of Indian tribes and other recipients. There are two important exemptions.

First, American Indian tribes are not bound by the Justice Department program statutes that prohibit employment discrimination. Title VII of the Civil Rights Act of 1964, which applies to both private and public employers, expressly exempts Indian tribes from the law, so that Indian tribes are not subject to the prohibition against discrimination based on race, color, national origin, religion, and sex in employment. Because the Justice Department program statutes rely on Title VII standards in enforcing civil rights pertaining to employment discrimination, the Justice Department reads into the program statutes the same exemption applying to funded Indian tribes. As a result of this policy, American Indian tribes that receive funding from the Justice Department do not violate any federal civil rights laws in exercising an Indian preference in their employment practices. In short, the Justice Department does not accept any administrative employment discrimination claims under Justice Department program statutes filed against funded American Indian tribes.

Second, funded American Indian tribes are also exempt from the requirement under the Safe Streets Act to prepare or submit to the Office for Civil Rights an Equal Employment Opportunity Plan. Funded tribes would simply file a certification with the Office for Civil Rights attesting to the exemption based on tribal status. Like any other recipient of federal financial assistance, funded tribes cannot discriminate against a beneficiary based on race, color, national origin, sex, religion, disability, or age.

For example, if a funded tribe operates a domestic violence shelter and a non-Indian woman who lives nearby seeks services, and if the shelter is operating under capacity and the woman is otherwise eligible for the federally funded services, the Justice Department expects the tribal shelter not to turn away the non-Indian woman based on her race or national origin.

For more information on the civil rights laws that apply to recipients of federal financial assistance from the Justice Department see the training video that the Office for Civil Rights has prepared on this topic. See also the training video on the responsibility recipients have to serve beneficiaries who are limited English proficient.

Funded tribal programs should also be aware of certain civil rights protections they have, especially when it comes to applying for federal funding through state-administered grant programs. The Office for Civil Rights is especially concerned about state practices that have the effect of excluding Indian tribes from federal programs that states administer.

In the past, the Office for Civil Rights has encountered three problematic state policies that affect the funding of Indian tribes.

First, states might claim that because Indian tribes may be eligible for direct funding from the federal government, the states will reserve scarce federal dollars for non-tribal programs.

This policy presents a potential civil rights problem. If in fact states are not treating applications from Indian tribes in the same way they would treat all other eligible applicants, one could argue that the state has adopted a policy that has the effect of discriminating against American Indian beneficiaries. By making the funding of Indian tribes a low priority, a state is in effect steering federally funded services away from American Indians, who are the most likely beneficiaries of tribal programs. The potential discrimination claim would be based on a theory of disparate impact: that the state's policy has the effect of denying services to beneficiaries based on race or national origin.

Second, state administering agencies may be reluctant to fund Indian tribes based on the faulty premise that the Justice Department would hold the state agency accountable for the awarded funds that an Indian tribe might mismanage, and then the state agency would be unable to recover the misspent funds from the subrecipient Indian tribe because no court would have jurisdiction to consider the state agency's claim. State administering agencies cannot use this argument as a justification for refusing to fund otherwise eligible Indian tribes.

Third, at least in the past, some states required any Indian tribes requesting funding under state-administered Justice Department programs to waive sovereignty as a condition for receiving a subaward. From a civil rights perspective, the Office for Civil Rights would interpret this state policy as having such a strong deterrent effect that it would eliminate otherwise eligible tribal service providers from even applying for state-administered federal resources. The practice may have a disparate impact on American Indians, the likely beneficiaries of tribal service providers.

For more information on the civil rights protections of American Indians and the rights and responsibilities of funded American Indian tribes, please write to the Office for Civil Rights; Office of Justice Programs; U.S. Department of Justice; 810 7th Street, NW; Washington, DC 20531. You may also contact the Office for Civil Rights by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at [email protected] You may also visit the Office's website at www.ojp.usdoj.gov/ocr.

Self Test 5

This self-test presents a series of scenarios and related questions to see how well you understand the application of federal civil rights laws to American Indians as beneficiaries of programs funded by the Justice Department and to American Indian Tribes that receive Justice Department funding.

The first scenario.

Anna, a Tribe Alpha member, and Maria, a recent immigrant from Mexico who has trouble speaking English, both seek help from the Tribe Beta Service Center, which offers shelter to survivors of domestic violence with Justice Department funding.

What is the obligation of the Tribe Beta Service Center?

Here is the answer.

As the Tribe Beta Service Center is a recipient of Justice Department funding, it has an obligation under Title VI of the Civil Rights Act of 1964 to provide services to beneficiaries, regardless of race or national origin. In this instance, if the Tribe Beta Service Center is operating below capacity, it has an obligation to serve both Anna and Maria. Tribe Beta Service Center may also have an obligation to provide services to Maria in her native language. For more information on the obligation that recipients have to provide services to limited English proficient individuals, see the OCR's online training segment on this topic.

The second scenario.

Sara, a Beta Tribe member, has come to Tribe Gamma House seeking shelter after a domestic violence incident. Tribe Gamma House is full. Marge Adam, the intake officer on duty, is unable to refer her to another shelter that has a bed, so she reluctantly turns Sara away.

What is the obligation of Tribe Gamma House?

Here is the answer.

Tribe Gamma House, because it has reached its full service capacity, has no obligation to serve Sara. As a practical matter, Tribe Gamma House might try to assist Sara in finding an alternative service provider, but it has no obligation to do so.

The third scenario.

Woodland Retreat, a domestic violence shelter funded by the Justice Department that the Delta Tribe operates, has a policy of not accepting any overnight lodgers who have mental illness. During intake, Susan, who needs a place to stay, acknowledges that she has a history of depression and she is currently taking medication for it.

Can Woodland Retreat refuse to provide her with services?

Here is the answer.

As a recipient of federal financial assistance from the Justice Department, Woodland Retreat must comply with the federal civil rights laws that apply to beneficiaries of federally assisted programs. One of the applicable federal civil rights laws is Section 504 of the Rehabilitation Act of 1973, which prohibits funded service providers to discriminate against beneficiaries based on disability. Woodland Retreat's blanket policy of refusing to serve people with mental disabilities violates Section 504. Disability includes mental disability. Woodland Retreat would need to have a process in place to make individual assessments of the disability needs of each applicant for its services. Unless the person with a disability poses a threat of harm either to self or others, Woodland Retreat cannot deny services. If Susan does not pose a threat to herself or others, then the facility has an obligation to accommodate her needs so that she can access the benefits of the federally funded program.

The fourth scenario.

Central State's planning office has restricted Justice Department funding based on the following policy:

No funding for any service providers receiving direct federal aid who are not subject to federal or state jurisdiction.

Tribe Beta Service Center applied for funding under a Justice Department program that Central State administers, and the state denied funding.

What can Beta Service Center do?

The policy of Central State, though neutral on its face, is suspect. It may have the effect of denying funding to tribally affiliated applicants, which might have a disparate impact on American Indian beneficiaries. The Tribe Beta Service Center may file a discrimination claim with the Office for Civil Rights asserting a disparate impact race or national origin discrimination claim on behalf of potential American Indian beneficiaries. The Office for Civil Rights will investigate the claim, determine its merits, and if warranted, work with Central State's planning office in amending its policy so that it is in line with applicable federal civil rights laws.

This concludes the Self-Test on the training segment, What Civil Rights Protections Do American Indians Have in Programs Funded by the Justice Department? What are the Obligations of Funded Indian Tribes?

Section 6: What are the Standard Assurances and How Does the Office for Civil Rights Enforce Civil Rights Laws?

This training video has two parts. The first part will address the standard assurances that recipients sign as a condition for receiving federal financial assistance as they pertain to civil rights obligations.

The second part will discuss the ways in which the Office for Civil Rights enforces the federal civil rights laws that apply to recipients of Justice Department funding.

In a training video that also appears online, we previously discussed all of the statutes and regulations that apply to recipients of federal financial assistance from the Justice Department. If you are not familiar with these laws, you may want to view that training video first before proceeding.

In applying for financial assistance from the Justice Department, a responsible official representing an applicant organization must sign standard assurances. The implementing regulations of Title VI, for example, require applicants to certify written assurances as part of the application packet. The assurances contain the contract provisions that every applicant must accept as a condition for receiving federal assistance.

Although the exact form of the Standard Assurances may vary from one program office to another in the Justice Department, all contain provisions stating that recipients of financial assistance must comply with certain civil rights requirements.

For example, the Standard Assurances at the Office of Justice Programs include the following language:

The applicant also specifically assures and certifies that:
. . . It will comply (and will require any subgrantees or contractors to comply) with any applicable statutorily-imposed nondiscrimination requirements....

The Standard Assurances then include a list of all of the applicable civil rights laws that we have previously discussed.

By signing the Standard Assurances, which are a form of a contract, a recipient acknowledges and accepts responsibility for complying with the civil rights obligations that come with federal financial assistance.

The Office for Civil Rights is responsible for ensuring that recipients of financial assistance from the Justice Department are complying with the applicable federal civil rights laws.

fourth, reviewing adverse findings of discrimination against a recipient;

fifth, reviewing Equal Employment Opportunity Plans.

The Office for Civil Rights is committed to providing technical assistance to recipients so that they can take proactive steps to comply with their civil rights obligations. The Office believes that prevention, rather than policing, is often the most effective way to safeguard the rights of both the employees and beneficiaries of federally assisted programs. This online training video is an example of the technical assistance the Office for Civil Rights offers to recipients. The Office for Civil Rights is also available to provide technical assistance by telephone or through onsite training programs.

The Office for Civil Rights accepts and investigates administrative complaints not only from the employees and beneficiaries of recipients but also from the employees and beneficiaries of subrecipients of Justice Department financial assistance.

Many employees of state and local governments that receive Justice Department funding may not be aware that in addition to other civil rights laws that protect them, the Justice Department's funding of their employer gives them the right to file an administrative complaint directly with the Office for Civil Rights.

Employees of recipients and subrecipients do not have to exhaust their employer's internal remedies to file a claim with the Justice Department; nor do they have to wait for clearance from the Equal Employment Opportunity Commission or an equivalent state agency before filing a complaint with the Office for Civil Rights. Aggrieved parties do not need to retain a lawyer to file an administrative complaint; they can simply go the website of the Office for Civil Rights, download the appropriate forms, sign them, and send them to the Office for Civil Rights.

The forms are available on the Office's website.

When the Office for Civil Rights receives an administrative complaint, it completes a preliminary review to make sure that the allegations involve a civil rights matter over which it has authority. If it does, the Office for Civil Rights will initiate an investigation, often gathering additional data from both the complainant and the funded agency that is the target of the complaint.

Once the Office for Civil Rights gathers sufficient information, it will then evaluate the merits of the complaint.

If the Office for Civil Rights finds that the facts do not support the claim, it will close the complaint, advising the complainant in writing that he or she might be able to pursue remedies either in federal or state court or with other federal or state administrative agencies.

If the Office for Civil Rights finds that the facts do support a finding that a funded organization is not in compliance with federal civil rights laws, the Office will work with the recipient to explore ways in which it can come into voluntary compliance. The Office puts a great deal of effort into negotiating resolution agreements with recipients to remedy civil rights problems, to ensure that federal funding continues.

If the Office for Civil Rights cannot ensure the compliance of a recipient with the applicable civil rights laws, the recipient then risks the suspension or termination of federal funding.

Here are a few examples of the administrative complaints that the Office for Civil Rights accepts and investigates:

Prisoners alleging that correctional facilities discriminate against them by denying opportunities to practice their religion.

Female law enforcement officers alleging sexual harassment in the workplace.

Community residents alleging that local law enforcement agencies make unlawful traffic stops based on race, ethnicity, or sex.

Survivors of domestic violence from immigrant communities alleging that funded service providers do not provide adequate language assistance services.

Deaf and hard-of-hearing inmates alleging that a state prison system did not make a reasonable modification to its policies to allow them to participate in programming.

The Office for Civil Rights does not just respond to the allegations contained in administrative complaints. The Office also has the authority to initiate its own investigations of recipients and subrecipients through compliance reviews. A compliance review is a civil rights audit. The scope of the review can be wide-ranging, such as examining all of the employment practices of a funded program; or it can be narrowly tailored, such as inspecting the physical accessibility at a funded facility to determine whether it complies with federal disability standards.

By law, the Office for Civil Rights cannot randomly select facilities for compliance reviews. The selection process relies on predetermined criteria. For example, under the Safe Streets Act, the Office for Civil Rights bases its selection of a recipient for a compliance review on regulatory criteria, which include the size of the award made to the recipient, the relative disparity between women and minorities in its workforce in comparison to the relevant labor market, and the complaints of discrimination that the Office receives against a recipient.

As with administrative complaints, the Office for Civil Rights gathers information from the recipient that is the target of the investigation to determine whether it is in compliance with federal civil rights laws. At the end of the investigation, the Office issues a compliance review report. If the Office finds that the recipient is in compliance, the report makes this finding. The compliance review report typically includes recommendations for improvement. If the Office finds that the recipient is not in compliance with the law, the Office works with the recipient to correct the deficiencies. The Office often undertakes monitoring of the recipient for an extended period of time to ensure that the recipient is making the necessary changes. Although it is rare, if a recipient refuses to work with the Office for Civil Rights to address a finding of noncompliance, the recipient risks the suspension or termination of federal financial assistance.

In recent years, the Office for Civil Rights has conducted compliance reviews of law enforcement agencies to determine whether they are providing appropriate language access services to their limited English proficient (or LEP) populations. The Office for Civil Rights has conducted compliance reviews of state administering agencies to determine whether they have mechanisms to monitor the civil rights compliance of their subrecipients. The Office for Civil Rights has conducted compliance reviews of funded faith-based organizations to determine whether state administering agencies treated them equitably in the state funding process and whether the funded faith-based organizations are inappropriately using federal resources for explicitly religious activities.

Beginning in fiscal year 2011, the Office for Civil Rights has begun posting all final compliance review reports on its website. As we noted in a previous online training video, recipients of funding under the Safe Streets Act have an obligation to send to the Office for Civil Rights all adverse findings of discrimination based on race, color, national origin, sex, and religion, that are the result of a due process hearing in a federal or state court or a federal or state administrative agency.

When the Office for Civil Rights receives these findings, it reviews them to see whether they may indicate a pattern that may warrant the Office's particular attention. For example, if the Office receives multiple sexual-harassment findings against a recipient, the information may prompt the Office to initiate a compliance review of the recipient's employment practices.

Finally, as we have mentioned in other training videos, certain recipients of funding subject to the Safe Streets Act must comply with the federal regulations on developing, maintaining, and submitting to the Office for Civil Rights an Equal Employment Opportunity Plan or EEOP Short Form.

When the Office for Civil Rights receives an EEOP Short Form, it not only reviews the plan to see whether it sufficiently addresses the regulatory reporting requirements, but it also looks at the workforce data to determine whether there is statistical evidence indicating significant underutilization of women or minorities in particular job categories.

If a recipient's EEOP Short Form raises questions about whether all qualified applicants or employees have equal employment opportunities, the Office may use the EEOP Short Form as the basis for initiating a compliance review that focuses on a recipient's employment practices.

If you have questions about the Standard Assurances or the enforcement responsibilities of the Office for Civil Rights, you may write to the Office for Civil Rights; Office of Justice Programs; U.S. Department of Justice; 810 7th Street, NW; Washington, DC 20531. You may contact the Office by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at [email protected]. You may visit the Office's website at www.ojp.usdoj.gov/ocr.

Self Test 6

This short review will test your knowledge about the standard assurances as they pertain to a recipient's civil rights obligations and the enforcement methods of the Office for Civil Rights.

In a moment, we will present test scenarios based on the following background:

The Plainview Social Service Agency (or Agency) receives funding from the Central State Public Safety Department (or Central State) with money made available from the Justice Department's Office for Victims of Crime.

Here is the first scenario.

A new program analyst at Central State, Teri Bell, was completing an annual review of the award file for the Agency. She noticed that there were no standard assurances in the Agency's file relating to civil rights laws.

Does this matter?

Yes, it does matter. Just as direct recipients from the Justice Department must certify standard assurances attesting to their willingness to comply with federal civil rights laws, state administering agencies are responsible for ensuring that all subrecipients execute similar documents. This obligation is consistent with the express language in the Justice Department's standard assurances: a state administering agency is responsible for ensuring the compliance of subrecipients and contractors with all applicable federal civil rights laws.

In this instance, Teri Bell should make sure that the Agency executes standard assurances that are consistent with the standard assurances from the Justice Department as they relate to civil rights obligations. She may also want to check to see if the absence of the standard assurances in this one case suggests a larger, systemic problem indicating Central State's failure to require standard assurances related to civil rights matters from all subrecipients.

Here is the second scenario.

When Teri Bell was making an onsite monitoring visit to one of the Agency's domestic violence shelters, she met with Sarah, a staff member, who confided that her supervisor was sexually harassing her.

What, if anything, should Teri do?

Once Teri learns from an onsite visit that there is an allegation of sexual harassment involving a subrecipient, she cannot ignore the situation. Sexual harassment is a form of employment discrimination based on sex. A state administering agency is responsible for ensuring that its subrecipients comply with the applicable civil rights laws, which in this instance include laws that expressly prohibit sex discrimination in employment.

If Central State has a complaint process, Teri should remind Sarah that she could file a complaint with Central State. At a minimum, Teri should also let Sarah know that she can file an employment discrimination claim directly with the Office for Civil Rights because the Agency is receiving funding from the Office for Victims of Crime. Without necessarily commenting on the merits of Sarah's claim, Teri should document the allegation of sexual harassment and the steps Central State took to address it.

For more information on complaint procedures, see the separate, online training segment on the civil rights obligations of state administering agencies.

Here is the third scenario.

The Office for Civil Rights recently received five complaints from Spanish-speaking immigrants seeking services from an Agency shelter. Central State also recently sent the Office for Civil Rights an adverse state court finding against the Agency, highlighting the Agency's practice of turning away prospective beneficiaries from Latin America.

Based on this information, what would you recommend that the Office for Civil Rights do?

The complaints of discrimination against the Agency, coupled with the adverse finding, strongly suggest that the Office for Civil Rights initiate a compliance review of the Agency, with the investigation focusing on the services the Agency's shelter provides to Central Americans who may be limited English proficient.

This concludes the Self-Test on the training segment, What are the Standard Assurances and How Does the Office for Civil Rights Enforce Civil Rights Laws?